DMCA hearing: university exemption

This proposed class would allow college and university
faculty and students to circumvent access controls on lawfully made and
acquired motion pictures and other audiovisual works for purposes of criticism
and comment. This exemption has been requested for audiovisual material made
available in all formats, including DVDs protected by the Content Scramble
System (“CSS”), Blu-ray discs protected by the Advanced Access Content System
(“AACS”), and TPM-protected online distribution services.

Proponents:

Brandon Butler, Glushko-Samuelson Intellectual Property Law
Clinic, American University: Why these uses are lawful.(1) Most important thing is that uses will
very likely be transformative fair use.(2) Short portions has never been the law of fair use and isn’t necessary
to require tailoring to purpose. (3) Close analysis is not the law of fair use
either.

Transformative: every use will be educational, which is
independently important, but also for criticism or commentary, core
transformative purposes, not substitutional, productive, use existing materials
as building blocks.Core First Amendment
uses.Quite significant that this
criticism/commentary is educational context as well, relative to entertainment.
Transformativeness is a function of the relationship between the purpose of the
user and the creator.

Charlesworth: are all educational uses transformative?

A: no. But if something wasn’t made for use in an
educational setting, then its use in education is likely transformative, also
evaluated with relation to whether what you used was reasonable in relation to
purpose.To point (2): amount is only
one of the factors.Two striking
examples where the outcome untethered from quantity.

Charlesworth: Campbell remanded on quantity.

A: but said parody can take more.

Charlesworth: enough to conjure up, but had to evaluate
amount in context of the use—not more.

A: Parody requires more than parsing a single sentence from
a poem.

Charlesworth: depends on the work.

A: but that’s the larger point: it depends, from work to
work and use to use, on the facts of each particular case.

Q: have you submitted evidence where the short portions was
insufficient?

A: Our friends intervened to make this point.We submitted an example we thought excellent,
Dr. Wallace’s use of what we believed to be short portions, he described as
“longer excerpt.” Can something be both?There are longer and shorter short portions, but this is too vague and
subjective, which is why we don’t like the short portions language.

Charlesworth: When we write these exemptions, saying it’s
fair use is just circular/doesn’t give guidance. We need to give guidance to
the public.More likely to be fair use
if it’s a short clip. But we didn’t say 15 seconds. We have to be specific and
targeted, and you have to show a substantial likelihood that it’s fair
use.[“Fair use” gives exactly as much
guidance as the law requires: if it’s not fair use, it won’t be entitled to the
exception, which more than satisfies “substantial likelihood.” You can even
say, it’s more likely to be fair use if it’s a short clip—that’s the standard
articulated by the law.This standard as
articulated by Charlesworth presupposes that some fair uses ought to be
excluded, which is not what the statute says.]

A: Standard of criticism and commentary/use appropriate to
the purpose incorporates that.

Charlesworth: full film?

A: reasonable people know you don’t need to do that.

Charlesworth: doesn’t know that’s the case.[What is the record in this proceeding?]Could comment on the trajectory of this film.

A: this is what courts do when they decide fair use. The
rightsholder who thinks this is a violation of the DMCA would go to court and
do exactly what they did in litigating the fair use question.

Charlesworth: the question is general, not individual.[So is §107.]Unlikely an educator would win by copying the whole film, which is why
the exemption reads the way it does. [Short and whole are not necessarily the
full spectrum!Why is “short” so much
more clear?]

A: appropriate amount, or tailored amount.

Charlesworth: amount needed to engage in the criticism.

A: fair use doesn’t require necessary, but you could go
there.

Q: Negative impacts: you pointed to Dr. Wallace and argued
that the current exception was vague, but he relied on it.

A: now we have a high profile proceeding claiming he was
wrong, and GC might read that and wonder.

Q: you’re on record contesting that.

A: I love to work with nice people like professors, but we
have small bandwidth to help people.I’m
happy to talk about “short portion” but a lot of people don’t have access to
those resources.Read listservs where
professors & librarians are, they talk about that as a grain of sand for an
oyster.

Q: wouldn’t they just be fretting over whether this is fair
use in your standard? [But they should be! And they must be anyway!]

A: purpose based definition: they know what their purpose
is!She shouldn’t have to worry about
short portion, but rather about purpose to teaching.

Charlesworth: that’s not the law.

A: I didn’t say that using it in the class was fair use.
She’s using it for teaching and it wasn’t made for teaching.

Quality issues: this argument has been made before, and
makes no more sense than before. If quality doesn’t make a difference, why do
they sell high quality?If Blu-Ray has
an advantage, those advantages shouldn’t just be available for entertainment
and not education. If screen capture is adequate, why bother with any
TPMs?Of course screencap exemptions
should be renewed in case they involve circumvention.

Image quality makes a difference. If it doesn’t look right,
it doesn’t have the impact the author intended, or the viewer might only see
distorted image, with impact on educational purpose.

Charlesworth: Is there a distinction b/t close analysis and
illustration, based on the record/need for high quality.

Charlesworth: are there cases where not every classroom
experience requires that?

Band: you could come up with some examples, but why would we
need to bother with that limitation?Why
make it difficult to apply an exemption we concede we need, making it hard to
use?There’s never been any infringement
resulting, so why not make it easy for educators?Instead of having them parse out which
quality they need for this particular clip—that would save educators and the
Office time, with zero impact on infringement.

Charlesworth: opponents say they’re concerned about Blu-Ray.

Peter Decherney, University of Pennsylvania: Saving Private Ryan was made with a
special process on the film stock; this can be captured on Blu-Ray but not
DVD.Material on studies showing that
students feel the impact of HD—there’s an emotional, physiological response
that’s been quantified.Educators have
been talking about harm from 2000 on, and we haven’t seen any viable alternatives
yet.

Are there cases in which low quality is enough?There are many instances when we need DVD or
VHS, when we teach the history of media. What I don’t teach is Blu-Ray because
it’s banned from classrooms.Conceded by
opponents that there’s real educational value from creating excerpts.

Exh. 13: Titanic,
showing how bad the CGI looks in retrospect.Blu-Ray uses a very different technology from DVDs.Blu-Ray = progressive scan, not interlaced,
so as you scrub through you always get a clean frame no matter where you stop,
never have an interlacing issue.

Charlesworth: If we looked at DVD, it would look different?

A: yes: you wouldn’t see the detail in the figures, which
reveals them to be bad CGI. Also if you scrub through you wouldn’t get a clean
frame—they aren’t even frames, but horizontal lines of video, replaced by
additional horizontal lines. In a Blu-Ray you see still images in
succession.

Charlesworth: CGI looked cartoonish, not real.Are you saying that if we watched in DVD, we
wouldn’t see the difference? Would it look more real?

A: it would look like you were looking from a different
lens. They’re just different ways of rendering the world.“Soap opera effect”
experienced on new TVs is actually a better image. Newer TVs put in extra
frames to try to make older images look better, but we experience them as
different, stage-like rather than screen like. It’s not a continuum, but
different ways of experiencing the image.It’s not just b/c it’s better, but different, and access can create a
different or better educational experience.

Charlesworth: we heard of more pixels in Blu-Ray.Higher quality/resolution/detail.

A: Cell biology: can be better image than DVD. Media studies = show differences. Saving
Private Ryan is actually about physiological impact on students in history
class.They would just understand the
DVD differently than Blu-Ray.Three
different ways of using Blu-Ray—there isn’t just one reason.

Charlesworth: any other exhibits?

A: no. [Though you can see the progressive scan interlacing
effects on their exhibits.]

Opponents:

Bruce Turnbull, AACS LA: Corley
says that no particular resolution is required for fair use.Goes into the uses we’re talking about.Second Circuit: film critic has no
constitutionally valid claim that a technologically superior review would be
allowed from filming in a theater.Fair
use is not a guarantee of access. [Even if that weren’t dicta and contradicted
by Eldred and Golan, that’s not the standard!1201 asks if the uses are likely noninfringing once made. 1201 exemption process exists to determine whether
likely noninfringing, even if constitutionally

Haven’t shown how clips would be made from Blu-Ray. It’s our
understanding that there are only commercial decryption products that require
payment. [Um, so what?] And that they aren’t limited to decrypting short
portions. They decrypt the entire work. You may only use the short portion, but
you have access to the entire work. There aren’t technologies we are aware of
that allow you to capture 30 seconds. [Of course those technologies exist no
matter what happens in this proceeding.] The harm to the ecosystem—methods and
systems used will be important. Not the same as DVD case—no one has ever shown
harm from previous exemptions, and part of the reason is that the hack of DVD
was pervasive and ubiquitious.[And the
streaming stuff?] You didn’t need an exemption to find a tool and make a copy
if you wanted. [Also true now.]

Charlesworth: how do you decrypt Blu-Ray?

Decherney: MakeMKV, plus Handbrake, plus editing.

Charlesworth: is that commercial?

Decherney: yes, it’s commercially available.

Turnbull: using technologies that are of the sort
specifically found to be illegal.AACS
itself sued a similar tech, DVDFab, which was enjoined. Motion to quash
injunction denied.MakeMKV works
differently but similar to illegal Slysoft product in Antigua.How this actually will work, and if there’s a
“legitimate” use then what does that do in the context of other cases/markets.

We’ve been given a number of examples, shifting process to
respond to that.We’re not prepared to
respond to the Titanic because that’s the first time it was presented.Existing exemption, and screencapture.

Q: does any screencap provide Blu-Ray quality?

A: No.Longer answer:
the screencap Taylor will demonstrate was able to capture the particular
elements the proponents said were important—wires in Wizard of Oz and others.We
were able to recreate those.

Q: but you don’t know of any tech that will get higher than
DVD?

A: there are ways of upconverting signals, and there are
progressive scan outputs from DVDs. But he doesn’t know of any where HD
screencap exists.

Q: is Titanic Blu-Ray decrypted [in the wild]?

A: He suspects so. [As do I.]

Screencap is viable.Ultraviolet/Disney anywhere is also available.

Q: you’re not contending Ultraviolet has the right range of
content for universities?

A: they don’t natively have content. You bring/purchase your
content, but if you bring a Blu-Ray, there are 1000s of titles available for
conversion and use. It’s not so much how much they offer as how much you can
put in. Many 1000s.

Q: For Disney everywhere, they only support kids movies.
Ultraviolet, doesn’t it need a studio affiliation, instead of a science
Blu-Ray?

A: yes.

Charlesworth: Could you play Titanic on Ultraviolet?

A: Believes so.

David Jonathan Taylor, DVDCCA: 3 quick clips from
screencap/video capture.First: in the
DVD, you can see cables pulling lion’s tail in Wizard of Oz, and thus also w/video capture.Second: exhibits showing compilations can be
used in classroom setting with sufficient.Third: demo of using the WMCapture software to show how easy it is.

Q: are these noncircumventing?

A: yes. [How does he know?]The Camtasia/WMCapture issue—I’ve used SnagIt, which is for recording
video capture, to show my process.

Wizard of Oz:marked
the cable pulling the Lion’s tail with an arrow.[NB: I … can’t really see the cable, though I
see the arrow.Peter Decherney says as a
student in the fourth row he can’t see it (I’m sitting behind him).]

Q: did you use any editing tools?

A: we had to use video editing software to stop it and put
an arrow in.

Charlesworth: To Decherney: Could you see the cable?

Decherney: there was one moment when it was swinging that I
saw it.

Exh. 15: compilations: Q: different technology from other
exhibits? These clips were made from Camtasia. They’ve been edited to be
shorter. But the capture is the same. [I note huge differences in frame size
across the different clips, which would be important in vidding. Not clear if
any of the frames are standard size.] Some interlacing, but many frames are
sufficient for our purposes to see what’s going on.A little motion blur, but again there is
sufficient color to see what’s going on. Video capture allows compilation for
instructional purposes, and quality includes the details proponents want to
show.

Exh. 16: me making use of WMCapture technology, recorded his
process using SnagIt.[Note that this is
indeed easier than converting Blu-Ray, which means that bad guys who don’t care
about quality will readily use it, and it doesn’t have any problem copying
whole works, meaning that the ecosystem is wide open right now.] Big chunk of
his screen is taken up with the interface.Detects content in window and will predict what you want to record.Lines up almost perfectly with the content he
wants.

Q: is it your opinion this is just as easy/easier than ripping/circumventing?

A: I’ve never ripped a DVD.This is very intuitive. I imagine there are nonintuitive programs. What
I understand is that other circumvention products have made it fairly easy as
well.

Q: so no additional time demands?

A: no.If you’re
going to prepare a lesson, you should prepare a compilation of clips, and this
would be quick and easy.

Q: others have said some capture does require circumvention.
How do you know? Is one higher quality?

A: I assume that if it’s circumventing the content on a
Blu-Ray, it’s going to give you perfect quality and recording.

Charlesworth: is it your contention that some screen capture
tech may involve circumvention and some not?We’re trying to understand whether there’s a need for an exemption.

A: none of the video capture tech I’ve used circumvents.
[How does he know?] There are products that claim to record Blu-Ray that first
circumvent.

Charlesworth: is there a way to tell for a consumer?

A: ultimately, by looking at output and seeing if it’s less
than perfect. If it’s less than perfect, it’s probably not circumvention. If
it’s perfect, it’s probably circumvention.

Charlesworth: it is possible to have DVD screencapture that
does circumvent?Is that your
testimony?Or is all DVD screencap noncircumventing?
[There is no such thing as “DVD screencap.” It’s screencap, whatever’s on the
screen.]

A: can’t speak to all. There is a product billed as
screencap for DVD/Blu-Ray that is in my opinion a circumvention tool.

Q: and the reason you know is the better quality? And you
don’t need to analyze the output, you can eyeball it?

A: … I wouldn’t say that.I’d be more suspicious when it’s nearly perfect.You’d need to go frame by frame.

Q: has anyone looked under the hood of these programs?

A: I don’t know.

Continuing explanation: he’s set a framerate, a mp4 output,
and a filename. In his opinion it’s straightforward and intuitive, like the old
tape recorders. Easy for any instructors to use and make a compilation.The quality of the video capture is
sufficiently high to see lines, colors, etc. Much better alternative than it’s
ever been before.

We aren’t opposed to renewing the existing exemption. No
reason to expand based on this record.Proponents’ record is almost identical to last time and shouldn’t be
expanded when more formats are available now. We acknowledge there are lots of
fair uses, we wouldn’t be comfortable as a “just do it” approach.We would prefer to keep a balance in
place.[A balance between things that
are fair use and also ok to circumvent and things that are fair use and not
ok.] We think “short” is a good limit, and we don’t know whether “extensive
quotes” is too much but it looks to us outside the exemption.There are lots of HD quality downloads.HDX is very close to Blu-Ray and you can
circumvent that under existing exemption.There are only 2 examples of Blu-Ray exclusive content—the Terminator:
Salvation director’s cut, which is available on SD, but only one bonus feature.

Q: would you be opposed to exemption for Blu-Ray exclusive
content?

A: yes, there are alternatives.Saving Private Ryan: showing D-day experience
type footage, you can still bring Blu-Ray player into the classroom and cue
that up.Close analysis limitation
should also stay in place. It’s helpful to give direction to users.Shows them when it might be necessary to circumvent
as opposed to unnecessary.The ability
to cue up copies already acquired via download/Ultraviolet is also important.
Not every title is available on Movies Anywhere, but the touchstone titles are,
and manufacture-on-demand DVD. We also think limit on good faith belief it’s
necessary to engage in circumvention is a good idea.

We think it would be appropriate to change it in one
way—separate it from current motion picture bundle, specifically defined for
educational uses so it’s distinct from remix, ebooks—this one is crafted pretty
will, but others are more vague and we’re afraid people read that to consume
the educational exemption.

Charlesworth: are you suggesting an overlap, where people might think I could
use the educational or noncommercial? Why is that a concern?

A: it’s a concern because my interpretation is noncommercial
was targeted to deal with remix/mashup videos, not just all types of
noncommercial videos. Because educational videos are typically noncommercial,
I’d be concerned that people would read noncommercial to cover educational uses
and render tailoring meaningless.

Charlesworth: so you view noncommercial as more broadly
drafted?

A: yes, but the intent wasn’t as broad as one could argue it
reads. Reference to types of videos in the record—remix style, mashup
style.[Also, for the record, film
criticism, social commentary, political videos, and a bunch of other uses.]

Q for Decherney: Studies about physiological effects of high
definition? Classroom setting?

A: Yes, they’re classroom setting HD v. SD.

Charlesworth: pedagogically, when would you try to elicit
this response?

A: Effect of violence, or romance, or anything with an
affective response. We try not to bore people.Works are often being taught because people have responded to them over
time.Art history, English, even in
science.

Q: doesn’t that depend on more factors than image quality,
like darkened screen?

A: there are many factors.I like blackout shades in classrooms.

Q: have people had trouble with the previous exemption being
staggered, so you have to try screencap first?

A: more elaborate over time, led to some confusion. Biggest
confusion is confusion over definition of “motion pictures”—that’s definitely
led to confusion.Chronicle of Higher Ed
had a whole paragraph saying the exemption didn’t cover TV.

Q: is there evidence of non-motion pictures, like video
games?

A: we found only a few examples, movies made of still images
like La Jetee, a French film that’s
often taught; documentaries of still images, and we’re not entirely clear about
their coverage b/c they don’t necessarily “suggestmovement.”There’s a limited range of AV material, but it can be confusing.

Q: were you aware of anyone deterred by the prior
exemption?

A: we clarified—if they find us we can tell them. We don’t
know who didn’t come to us.

Williams: if you clarify, still exclude video games b/c
there’s nothing in the record.

Band: A couple of quick points about screencap—are the joint
creators willing to certify that screencap doesn’t circumvent and indemnify
educators in case they’re wrong?

Charlesworth: are you seeking an exemption for screencap,
assuming some may circumvent?

Decherney: 70-90% of educational environments use Macs,
which block screencapture.

A: but you can screencap and then get a file that can be
used on a Mac.

Decherney: but that means that educators, students, media
labs would have to buy PCs.

A: you’re saying these technologies can’t be used on a Mac
w/out prior circumvention?

Apple changed the way screen
capture is performed, starting in OS X 10.7 Lion. DVD video played back with
the Mac OS DVD Player software can no longer be captured. Earlier versions of
OS X are not affected.

There are two workarounds

Play back the DVD with a different
program such as VLC media player and capture it.

Use DVD ripping software such as
Handbrake (may require installation of VLC and supporting libraries) to convert
the DVD video directly to a usable format such as mp4 or QuickTime movie.

Decherney: screencap is insufficient for almost every
purpose.I’d rather not talk about it.
Changes appearance, pixels, adds interpolated frames, frame size, framerate.
Imagine in any other field—if you want to teach Toni Morrison, you have to
teach pages missing and pages added.That’s ludicrious.

Charlesworth: we just saw a screencap that was arguably sufficient, depending
on the use. We found before that many uses didn’t require that level of detail.
To avoid any doubt, we allowed any exemption. You aren’t seeking that.[NB: We didn’t seek that last time! You just
gave it to us without a request for it!]

Band: it would be helpful, speaking as a lawyer, to have
that renewed, even though the educators say it’s insufficient.

Butler: In the current screencap exemption, there’s a
requirement that the public representation must be that it’s offered after
content lawfully decrypted.But we were
now told that the eyeball test is the test. Are these companies making the
necessary representations? We don’t think anyone is making those representations. If there is a future exemption,
maybe that requirement should come out, since we don’t have any evidence that
those requirements are met.

Camtasia tech support, January 2015: current OS Macs can’t
capture DVDs. Recommends circumvention instead.[Butler found the same link I did!]

Charlesworth: any comments on meeting the standard?

Williams: I have seen on some of the marketing materials a
circumvention claim. Sometimes in FAQs.[Is that in the record?Should
they submit those?] For the benefit of studios.

I have not used Camtasia personally, but people I’ve worked
with have; would have to get back to you. What I see doesn’t suggest it is
circumventing.It’s been around for so
long that if you circumvent and still don’t get perfect copies, you have a
fundamental challenge.

Band: it’s on the latest version of Mac. It could be they
got around the block on an earlier version.That goes to the bigger problem, that depending on the software release
it may or may not work.

Charlesworth: what version of Mac.

Butler: this has been true for a while.10.7 = DRM blocks DVD and iTunes video
capture. Camtasia tech says, sorry, you just can’t use it on Mac since then.

Williams: I can’t speak to the tech question, but the Office
has said that the fact some formats don’t work is not sufficient for exemption.

Q: Ability to upconvert/use HDX: what does that mean as an
alternative? Is that viable?

Decherney: Upconversion is about playing DVD quality on a
larger TV. It doesn’t add quality. The resolution isn’t higher. The detail
isn’t higher. It just repeats lines of resolution.I don’t know much about HDX.

Williams: there’s upconversion, which improves quality, and
what you could call upconversion with digital programs—take a SD DVD, pay $5,
upgrade to HD copy, and under existing copy, those downloads are covered. HD
and HDX version—marketing is typically that it’s 1080p quality.

Don’t know how many titles are available. Everything you can
access in Ultraviolet, he thinks.

Decherney: upconversion is the same thing. You can’t give a
SD version more information.

Taylor: no, they give you a native HD copy online.

Would be covered under digital distribution exemption.You don’t even have to take the disc in to
Wal-Mart.

Decherney: can you use short portions? Can you put them on slides?

Charlesworth: it’s a digital download—you could do those
things by swapping out your lower res version for a download.

Decherney: that’s editable?[no]

Williams: these copies are relevant—they can often be used
w/out circumvention to cue up in advance and play from the start point.If you need clip compilation, you would have
to engage in circumvention, but we’re not opposed to a renewal, only an
expansion.Transmitted/distributed
question—streaming v. downloads might be uncertain [what?!] but these are clear
downloads.

Creative Commons/disclaimer

Text on this blog is licensed under a Creative Commons Attribution 2.5 License. Pictures and works quoted may be subject to other parties' copyrights.
I speak for myself. On this blog, I do not and cannot speak for Georgetown Law, the Organization for Transformative Works and/or AO3.